[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
Exhibit 10.1
SUPPLY AGREEMENT
THIS SUPPLY AGREEMENT is effective as of September 7, 2023 (the “Effective Date”) and is made by and between Dynavax Technologies Corporation, having an office at 2100 Powell Street, Suite 720, Emeryville, CA 94608 (“CUSTOMER”) and Nitto Denko Avecia Inc. (“AVECIA”), having an office at 125 Fortune Boulevard, Milford, MA 01757. CUSTOMER and AVECIA are sometimes referred to herein individually as a “Party” and collectively as “Parties”.
Recital
WHEREAS, AVECIA has supplied to CUSTOMER a certain product identified by CUSTOMER as CpG 1018 pursuant to that certain Master Services Agreement by and between the Parties dated February 24, 2016, as amended (the “MSA”), and Scopes of Work thereto, as amended (“SOWs”), and that certain Supply Agreement between the Parties dated October 1, 2012, as amended (the “2012 Supply Agreement”);
WHEREAS, it is the intention of the Parties that: (a) AVECIA produce the quantities of Product (defined below) in liquid bulk formulation that are subject to outstanding orders submitted pursuant to the MSA and related SOWs prior to the Effective Date (the “MSA Outstanding Quantities”) using the Manufacturing Process (defined below), and supply the MSA Outstanding Quantities to CUSTOMER, in accordance with the MSA, related SOWs and Sections 7.2-7.6 and 11.8 of this Agreement; (b) this Supply Agreement will be the operative and governing document with respect to the supply of all quantities of Product, other than the MSA Outstanding Quantities, ordered by CUSTOMER for production using the Manufacturing Process during the term of this Agreement; and (c) the 2012 Supply Agreement will continue to be the operative and governing document with respect to the supply of Product produced using the [*] “Current Process” (as such term is defined in the 2012 Supply Agreement).
NOW, INTENDING TO BE LEGALLY BOUND, IT IS HEREBY AGREED as follows:
The terms in this Agreement with initial letters capitalized or all letters capitalized, as applicable, whether used in the singular or plural, shall have the meaning set forth or cross referenced in this Section 1 below (and derivative forms of such terms shall be interpreted accordingly):
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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[*] | [*] [*] |
[*] | $[*] |
[*] | $[*] |
[*] | $[*] |
[*] | $[*] |
[*] | $[*] |
[*] | $[*] |
[*] | $[*] |
[*] | $[*] |
[*] | $[*] |
[*] | $[*] |
[*] | $[*] |
[*] | $[*] |
[*] | $[*] |
[*] | $[*] |
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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[*] | $[*] |
[*] | $[*] |
[*] | $[*] |
** All orders of Product of [*] shall be ordered by CUSTOMER [*], provided that CUSTOMER shall [*].
The Applicable Price for Product purchased in a calendar year shall be initially based on [*] in any such calendar year as set forth in the CUSTOMER Demand Forecast [*], subject to adjustment as provided in Section 7.1.2.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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Regardless of [*] or, [*], AVECIA shall issue all invoices for such Product [*]. For the avoidance of doubt, CUSTOMER shall [*] or, except as expressly provided in Section 5.1 [*].
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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If CUSTOMER is required or requested by any Regulatory Authority to recall any Product supplied by AVECIA hereunder [*], and [*], and [*], then, subject to the limitation of liability provisions of Section 10.4 above, AVECIA shall [*]. If a recall is due to any reason other than [*], CUSTOMER shall pay all of the costs and expenses of the recall.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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Confidential Information does not include information that the Receiving Party can demonstrate by competent evidence:
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No combination of elements within the Confidential Information shall be deemed to be part of the public domain merely because the individual elements of such combination are part of the public domain, unless the entire combination itself, or the entire principle of use or operation of such combination (if any), is part of the public domain. In addition, no element within the Confidential Information shall be deemed to be a part of the public domain merely because it is embraced by more general information or data that is part of the public domain.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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Nothing in this Agreement shall create, or be deemed to create, a partnership or the relationship of principal and agent or employer and employee between the Parties. Each Party agrees to perform under this Agreement solely as an independent contractor.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective legal successors and permitted assigns. Neither Party may assign this Agreement without the prior written consent of the other Party, which consent will not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, [*] may assign this Agreement: (a) [*]; or (b) [*]. The rights and obligations of the Parties under this Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the Parties, and the name of a Party appearing herein shall be deemed to include the name of such Party’s successors and permitted assigns to the extent necessary to carry out the intent of this Section 19. Any purported assignment not in compliance with this Section 19 shall be void.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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No variation or amendment of this Agreement shall bind a Party unless made in writing in the English language and agreed to in writing by duly authorized officers of both Parties.
If any provision of this Agreement is agreed by the Parties to be illegal, void or unenforceable under any law that is applicable hereto or if any court of competent jurisdiction in a final decision so determines, this Agreement shall continue in force save that such provision shall be deemed to be excised here from with effect from the date of such agreement or decision or such earlier date as the Parties may agree.
A failure by either Party hereto to exercise or enforce any rights conferred upon it by this Agreement shall not be deemed to be a waiver of any such rights or operate so as to bar the exercise or enforcement thereof at any subsequent time or times. Any waiver by a Party of a particular provision or right shall be in writing, shall be as to a particular matter and, if applicable, for a particular period of time, and shall be effective only if signed by an authorized representative of such Party.
Nitto Denko Avecia Inc.
125 Fortune Boulevard
Milford, MA 01757
Attention: Vice President, Business Development
Email: [*]
If to CUSTOMER:
Dynavax Technologies Corporation
2100 Powell Street, Suite 720
Emeryville, CA 94608
Attention: President and Chief Operating Officer
Email: [*]
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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With a copy to:
Dynavax Technologies Corporation
2100 Powell Street, Suite 720
Emeryville, CA 94608
Attention: General Counsel
Email: [*]
Each of the Parties shall use all reasonable endeavors to mitigate any costs, losses or expenses due to be incurred or suffered by the other Party in connection with the performance or non- performance of this Agreement.
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[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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Neither expiration nor termination of this Agreement shall relieve either Party of any obligation or liability accruing prior to such expiration or termination, nor shall expiration or termination of this Agreement preclude either Party from pursuing all rights and remedies it may have under this Agreement, at law or in equity, with respect to breach of this Agreement Sections 1 (as necessary for the interpretation of the other surviving provisions of this Agreement), 3.5, 4.4, 6.3, 7.1.2, 8.2, 8.3, 9.4, 10, 11.4, 11.5, 11.7, 11.8, 11.9, 13.2-13.4, 14, 15, 17, 19, and 20-26 of this Agreement, and any other provisions of this Agreement which are reasonably intended by the Parties to have effect beyond the Term, shall survive expiration or termination of this Agreement.
This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement may be executed and delivered electronically or by facsimile, and upon such delivery, the electronic or facsimile signature will be deemed to have the same effect as if the original signature had been delivered to the other Party.
[Signatures follow on next page]
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IN WITNESS WHEREOF, this Agreement has been entered into the day and year first above written.
NITTO DENKO AVECIA INC.
By /s/ Tammy Cooper | DYNAVAX TECHNOLOGIES CORPORATION
By /s/ David Novack
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Name Tammy Cooper | Name David Novack
|
Title VP of Business Development | Title President and COO |
Signature Page to Supply Agreement
[*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) is the type that the registrant treats as private or confidential.
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